Peo v. Clark

21CA1544 Peo v Clark 09-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1544

Arapahoe County District Court No. 17CR3639

Honorable Andrew C. Baum, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Billy Darnell Clark, Jr.,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE GRAHAM*

Johnson and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced September 5, 2024

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Andrew C. Heher, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2024.

1

¶ 1 Defendant, Billy Darnell Clark, Jr., appeals his judgment of

conviction entered on jury verdicts finding him guilty of two counts

of first degree assault. We affirm.

I. Factual and Procedural History

¶ 2 In early December 2017, Clark and his wife, T.W., engaged in

a heated argument after Clark discovered she was having an affair

with D.L.

1

The argument became physical and T.W. was injured.

After this initial altercation, Clark moved out of the marital home.

¶ 3 About two weeks later, Clark returned to the marital home to

deliver groceries and see his children; however, after a heated

phone call with T.W., Clark returned to his car and left the

property. T.W. took the call in her car with the car’s speaker on, so

her passengers, D.L., G.M. and K.S., were able to hear the

conversation with Clark. During the call, T.W. made several

threatening statements to Clark, telling Clark that she had “two

[people] that will beat your ass.”

¶ 4 As Clark was driving away, T.W. saw Clark pass by. T.W.

began following Clark, and both cars eventually stopped. T.W.

1

For the sake of brevity, we will refer to the victims (D.L. and G.M.)

and Clark’s wife (T.W.) by their initials.

2

exited her car, approached Clark’s driver’s side window, and

engaged in another argument while he remained in his vehicle. At

the same time, both D.L. and G.M. also exited T.W.’s car and

approached the rear passenger side of Clark’s vehicle.

¶ 5 At this point, the parties’ descriptions of events diverge. T.W.

testified that during her conversation with Clark over the speaker

phone, Clark told her that she “deserved” what she got during their

previous altercation. T.W. said that this comment upset both D.L.

and G.M. T.W. said that, after she began following Clark, he was

driving very slowly. T.W. said that she eventually stopped and got

out of her car, which caused Clark to also stop his vehicle. Before

exiting her vehicle, T.W. told everyone to stay in her car while she

talked to Clark. However, she said that both D.L. and G.M. left the

car and stood “a little bit back” by a tree. T.W. testified that she

began arguing with Clark and that she made him feel as if “he was

going to get jumped” by saying “[y]ou deserve what you’re about to

get.”

¶ 6 At some point Clark saw D.L. and G.M. approaching his car.

T.W. testified that she saw Clark get out of the car, and that he did

not have a gun with him at that time. She said that she believed

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that Clark went back to the car and got the weapon. T.W. also said

that she heard the gunshots, but that she did not know at the time

if anyone was injured.

¶ 7 D.L. also testified at trial. D.L. said that T.W. stopped her car

“three to four” car lengths behind Clark’s car. D.L. said that T.W.

got out of her car, so he also got out of the car and stood near a tree

“just in case.” D.L. said he then saw the door to Clark’s car “fly

open,” which caused him to start running toward Clark’s car. D.L.

testified that he was hit by a bullet as he neared Clark’s car and

that, as he turned and ran away, he was struck by two more

bullets.

¶ 8 K.S. testified that she was also in the car at the time T.W.

argued with Clark over the car’s speakerphone. She said that the

mood in the car was “hyper” during the call, and that D.L. and G.M.

were both “hyping each other up.” K.S. recalled that they followed

Clark’s car for about a block; however, K.S. believed that Clark

stopped his vehicle first before T.W. stopped her car. K.S. also said

that, after T.W. and Clark talked for a few minutes, Clark opened

his car door, and that that is when D.L. and G.M. walked toward

Clark’s car. K.S. said that, as D.L. and G.M. approached Clark’s

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car, she heard shots. She also testified that, at the time the shots

were fired, D.L. and G.M. were “[m]aybe a couple of arm’s length[]s

away from Clark.” K.S. also stated that as G.M. was “running past

the car, I seen the bullet hit him.”

¶ 9 Finally, Clark testified about the altercation. He said that

during the phone call with T.W., she said that she had two friends

coming to beat him up. Clark left the house to avoid a

confrontation; however, T.W. saw him driving and she began to

follow him. Clark said he began driving very slowly with his hazard

lights on. He said that T.W. stopped her car and exited the vehicle,

so he also stopped his car. He said that T.W. approached his car

and they began talking. Clark then heard a “bang” as someone

attempted to open the back passenger side door to his car. Clark

said that he saw “shadows” around his vehicle and that people were

yelling at him to “get . . . out of the car,” and that “[Clark] better

have that gun.” Clark testified that the event happened fast and

that he began firing his gun as soon as he got out of his car. Clark

said that his first shot was a “hip fire” as he was getting out of the

car and that the person near his car was still moving so he fired

again. Clark said that as soon as he came up to the tailgate of his

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car, he saw G.M. moving toward him, so he fired his gun again.

Clark also said that both D.L. and G.M. were facing him when he

shot them.

¶ 10 Both D.L. and G.M. sustained serious bodily injuries from

multiple gunshot wounds. Clark was charged with two counts of

attempted second degree murder and two counts of first degree

assault. After a jury trial, Clark was convicted on the two counts of

first degree assault, and he was sentenced to serve a fifteen-year

term and a ten-year term in the custody of the Department of

Corrections, set to run consecutively.

II. Jury Instructions

¶ 11 Clark contends that the trial court erroneously instructed the

jury. Specifically, Clark argues that the trial court failed to properly

instruct the jury (1) on the concept of “multiple assailants” and (2)

on the concept of “initial aggressor.” We are not persuaded.

A. Standard of Review

¶ 12 A trial court has a duty to instruct the jury on all matters of

law applicable to the case. Riley v. People, 266 P.3d 1089, 1092

(Colo. 2011). We review a trial court’s decision to give a particular

instruction for an abuse of discretion. See People v. Ramos, 2017

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COA 100, ¶ 14. “A court abuses its discretion if its decision is

manifestly arbitrary, unreasonable, or unfair, or when it misapplies

the law.” People v. Grant, 2021 COA 53, ¶ 12 (citations omitted).

But we review de novo whether the jury instructions, when

considered as a whole, accurately informed the jury of the governing

law. See Riley, 266 P.3d at 1092.

¶ 13 When, as here, a defendant does not preserve a contention, we

review only for plain error. See Hagos v. People, 2012 CO 63, ¶ 14.

An error is plain if it is obvious and substantial, such that it so

undermines the trial’s fundamental fairness as to cast serious

doubt on the judgment of conviction’s reliability. See id. An error is

obvious when the action contravenes a clear statutory requirement,

a well-settled legal principle, or Colorado case law. Scott v. People,

2017 CO 16, ¶ 16. For an error to be plain, it must have been “so

clear cut and so obvious” that a trial judge should have been able to

avoid the error without the benefit of an objection. People v.

Conyac, 2014 COA 8M, ¶ 54. As applied to jury instructions, the

defendant must “demonstrate not only that the instruction affected

a substantial right, but also that the record reveals a reasonable

possibility that the error contributed to his conviction.” People v.

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Garcia, 28 P.3d 340, 344 (Colo. 2001) (quoting Bogdanov v. People,

941 P.2d 247, 255-56 (Colo. 1997)). Thus, a court’s failure to

instruct the jury properly does not constitute plain error if the

relevant instruction, read in conjunction with other instructions,

adequately informed the jury of the law. Id. at 345 n.3. Moreover,

an erroneous jury instruction does not normally constitute plain

error where the issue is not contested at trial or where the record

contains overwhelming evidence of the defendant’s guilt. Espinoza

v. People, 712 P.2d 476, 478 (Colo. 1985).

B. Additional Facts

¶ 14 At the jury instructions conference, defense counsel tendered

several instructions to the court, one of which related to Clark’s

assertion that he acted in self-defense.

2

After reviewing the

2

We note that the transcript of the jury instructions conference

contains numerous gaps where defense counsel requested the

discussion occur “off the record.” Relevant here, one such gap

occurs when the parties are discussing the portion of the self-

defense instruction that addresses the “initial aggressor” and “duty

to retreat” concepts. As a result, facts not presented in the record

cannot be reviewed, and we will presume that omitted portions of

the record would support the trial court’s ruling. See People v.

Duran, 2015 COA 141, ¶¶ 12-13 (“The presumption is that material

portions omitted from the record would support the judgment.”).

8

evidence presented, the trial court found the evidence sufficient to

support including the instruction.

¶ 15 Turning to the “initial aggressor” concept, the court asked

Clark’s counsel if he believed that the initial aggressor language

should be included in the instruction. Clark’s counsel responded,

“I don’t know exactly what you’re looking at, Your Honor, but in the

end I think that it’s important that there be some language with

regard to [Clark] not having to retreat.” The court agreed and noted

that the second paragraph of the self-defense instruction already

included language instructing the jury that Clark did not have a

duty to retreat. After reviewing a printed copy of the self-defense

instruction that included the “initial aggressor” language, Clark’s

counsel informed the court that he had no objection to it. Before

closing arguments, the parties were shown the final jury

instructions and Clark’s counsel again reiterated that he had no

objections.

¶ 16 With regard to Jury Instruction No. 15 concerning self-

defense, the trial court instructed the jury:

The evidence presented in this case has raised

the affirmative defense of “defense of person,”

as a defense to Assault in the First Degree

9

(Deadly Weapon) and Attempt to Commit

Murder in the Second Degree.

Mr. Clark was legally authorized to use

physical force upon another person without

first retreating if:

(1) he used that physical force in order to

defend himself from what he reasonably

believed to be the use or imminent use of

unlawful physical force by that other person,

and

(2) he used a degree of force which he

reasonably believed to be necessary for that

purpose, and,

(3) he was not the initial aggressor, or, if he

was the initial aggressor, he had withdrawn

from the encounter and effectively

communicated to the other person his intent

to do so, and the other person nevertheless

continued or threatened the use of unlawful

physical force.

¶ 17 The instruction also informed the jury that the prosecution

must disprove beyond a reasonable doubt at least one element of

the self-defense instruction for the affirmative defense to not apply,

and that the jury should reach its verdict “after considering all the

evidence.” Clark’s counsel did not request a multiple assailants

instruction at any point during the jury instructions conference.

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C. Analysis

1. Waiver and Invited Error

¶ 18 At the outset, the People contend that Clark may not challenge

either jury instruction because he either invited or waived any

error. We disagree.

¶ 19 A waiver requires an “intentional relinquishment of a known

right or privilege.” Phillips v. People, 2019 CO 72, ¶ 16 (quoting

People v. Rediger, 2018 CO 32, ¶ 39). “When an intentional

relinquishment of a known right is not present, then ‘the failure to

make the timely assertion of a right’ is a forfeiture, not a waiver.”

Cardman v. People, 2019 CO 73, ¶ 10 (quoting Phillips, ¶ 17).

“Thus, while waiver requires ‘intent,’ forfeiture occurs ‘through

neglect.’” Id. (citation omitted).

¶ 20 Under the doctrine of invited error, “a party may not complain

on appeal of an error that he has invited or injected into the case;

he must abide the consequences of his acts.” People v. Zapata, 779

P.2d 1307, 1309 (Colo. 1989). Invited error is a narrow doctrine

that applies to errors in trial strategy but not to errors that result

from oversight or neglect. Rediger, ¶ 34. Like waiver, invited error

precludes review when a party acts intentionally; mere

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acquiescence to an error that the party is unaware of does not show

invited error. Id. at ¶¶ 34-37. Thus, without record evidence that a

party affirmatively and strategically acquiesced to an erroneous

ruling, invited error does not apply. People v. Garcia, 2018 COA

180, ¶ 12 (citing Rediger, ¶ 10).

¶ 21 The People assert that Clark either invited or waived any

potential error because he “tendered the instructions which

initiated the conversation at the jury instruction conference” and

that he “actively participated in crafting the self-defense instruction

ultimately given to the jury.” We disagree.

¶ 22 Relevant here, Clark did not affirmatively indicate his desire to

relinquish a known right; indeed, the record is devoid of any

indication that the omissions on Clark’s part were intentional. See

Cardman, ¶ 11 (“The record is barren of any indication that defense

counsel considered raising the unpreserved claim before the trial

court but then, for strategic or any other reason, discarded the

idea.”). Rather, Clark’s omission of the multiple assailants

instruction is more properly characterized as a negligent oversight

on defense counsel’s part. See Rediger, ¶ 39 (Courts “do not

presume acquiescence in the loss of fundamental constitutional

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rights, and therefore indulge every reasonable presumption against

waiver.” (quoting People v. Curtis, 681 P.2d 504, 514 (Colo. 1984)));

see also United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000)

(“[W]aiver is accomplished by intent, [but] forfeiture comes about

through neglect.”). While it is true that Clark offered a version of

the jury instructions to the court and his counsel actively

participated in the jury instructions conference, we can identify no

evidence in the record to indicate Clark’s clear intention to waive

this objection. Furthermore, there is no identifiable tactical or

strategic advantage to Clark omitting a multiple assailants

instruction where at least some evidence at trial supported

inclusion of the instruction. Consequently, we reject the People’s

argument that the doctrines of waiver and invited error apply.

2. Multiple Assailants Instruction

¶ 23 Clark contends that the trial court erred by not sua sponte

instructing the jury on the concept of “multiple assailants.” For

several reasons, we disagree.

¶ 24 First, we disagree with Clark’s contention that the error in this

case was sufficiently open and obvious to satisfy the first element of

plain error review. Typically, a district court need not “give a

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specific multiple assailants instruction in every case involving both

multiple assailants and self-defense.” Riley, 266 P.3d at 1094.

Rather, a jury must consider the totality of the circumstances to

determine whether the defendant (1) reasonably believed self-

defense was necessary and (2) used reasonable force to repel the

apparent danger. Id. “The purpose of this rule is to ensure that the

jury understands that it may consider all the relevant evidence

when assessing the reasonableness of the defendant’s actions.” Id.

¶ 25 In this case, the court’s instruction to the jury emphasized

that the jury was to “consider[] all the evidence” in determining

whether Clark “reasonably believed” that another person was

subjecting (or about to subject) Clark to unlawful physical force.

This informed the jury that Clark was justified in using force

against any person who he reasonably believed was imminently

attacking him.

¶ 26 And, as noted above, Colorado courts have not deemed it

necessary to require trial courts to provide a specific multiple

assailants instruction in every self-defense case where multiple

assailants are present. Id. Indeed, courts have reached varying

outcomes in cases involving multiple assailants instructions based

14

on the specific circumstances of the case. See, e.g., People v. Jones,

675 P.2d 9, 13 (Colo. 1984) (concluding trial court’s denial of

multiple assailants instruction improper because evidence

supported its inclusion and the trial court’s self-defense instruction

improperly “omitted any reference to the defendant’s right to use

force in order to defend against [the actions of the] associates”);

Riley, 266 P.3d at 1092, 1094 (concluding a specific multiple

assailants instruction was not required where the court gave an

“apparent necessity” instruction because the “given instructions

properly direct[ed] the jury to consider the totality of the

circumstances”); People v. Roberts-Bicking, 2021 COA 12, ¶¶ 27-28

(trial court’s error in denying defendant’s multiple assailants

instruction was cured by trial court’s inclusion of supplemental

instruction requiring jury to consider “the totality of the

circumstances”). Taken together, these cases illustrate that a

specific multiple assailants instruction is not required in every

circumstance. Thus, we are hard pressed to conclude that the error

was so obvious that the trial court should have interjected sua

sponte where the case law on point demonstrates a variety of

outcomes based on case-specific circumstances.

15

¶ 27 Second, even assuming arguendo that the trial court’s failure

to instruct the jury sua sponte on the concept of multiple assailants

was obvious error, we still conclude that the error was not

substantial because there was not a reasonable probability that the

error contributed to Clark’s conviction. See People v. Miller, 113

P.3d 743, 750 (Colo. 2005).

¶ 28 In addition to the pattern jury instruction concerning self-

defense, the court instructed the jury to consider all the evidence in

the case in deciding whether the defendant acted in self-defense.

Specifically, the instructions given to the jury required it to consider

all of the evidence presented in the case before rendering a verdict.

This instruction, in combination with the other instructions

concerning self-defense, adequately directed the jury to consider the

totality of the circumstances, including the number of individuals

allegedly assaulting Clark at the time of the altercation. See People

v. Trujillo, 83 P.3d 642, 645 (Colo. 2004) (reviewing court must

consider jury instructions as a whole). Thus, we discern no

evidence that the jury instructions provided here improperly limited

the jury to consider only the danger posed by a single assailant.

16

¶ 29 We also deem it significant that defense counsel was able to

argue Clark’s multiple assailants theory under the instructions

provided by the court. For instance, Clark consistently testified

that there were “multiple people” or “multiple shadows” moving

around his car in the moments before he fired. Clark also

explained that he heard multiple voices threatening him, telling him

to “get . . . out of the car” and that Clark “better have that gun on

[him].” And in his closing argument, Clark’s counsel again

emphasized that Clark was threatened by multiple people, arguing

that Clark believed he had “two people here that are going to beat

[Clark] up.” Indeed, much of Clark’s closing argument centered on

the fact that Clark believed that D.L. and G.M. were about to

assault him.

¶ 30 Also, neither the prosecutor nor the court suggested to the

jury that it could not properly take into account Clark’s evidence

that he had to defend himself against multiple assailants and

therefore was entitled to use a degree of force he reasonably

believed necessary for that purpose. Indeed, as noted above,

Clark’s argument throughout the case was that his use of force was

necessary primarily because he was threatened by multiple

17

assailants. In other words, Clark’s primary point of contention

focused on whether his use of force was reasonable in the

circumstances. Thus, from our review of the record, it appears that

neither party actually contested whether the jury could consider the

impact of multiple assailants on Clark’s actions at trial. Espinoza,

712 P.2d at 478 (finding no plain error where the court erroneously

defined “knowingly” because the mental state was not contested at

trial); People v. Geyer, 942 P.2d 1297, 1301 (Colo. App. 1996)

(finding the court’s instructions on “unlawful entry” did not

constitute plain error because the defendant did not contest that he

was not authorized to enter the unit).

¶ 31 Therefore, based on the above, we also conclude that any

alleged error was not substantial because the record reveals that

there is not a reasonable probability that the error contributed to

Clark’s conviction.

3. Initial Aggressor Instruction

¶ 32 Clark contends that the trial court committed reversible error

when it instructed the jury on the concept of “initial aggressor.”

Specifically, he argues that the court erred in giving the initial

aggressor instruction because there was no evidence that Clark was

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the initial aggressor, and, therefore, there was no support for

including this instruction. Again, we are not persuaded.

¶ 33 Where, as here, a defendant does not object to a jury

instruction, we review for plain error. Garcia, 28 P.3d at 344. To

be an initial aggressor, a defendant must initiate the physical

conflict. People v. Beasley, 778 P.2d 304, 306 (Colo. App. 1989). “A

court may give an initial aggressor instruction if the evidence will

support a reasonable inference that the defendant initiated the

physical conflict by using or threatening the imminent use of

unlawful physical force.” People v. Griffin, 224 P.3d 292, 300 (Colo.

App. 2009); see also People v. Roadcap, 78 P.3d 1108, 1113 (Colo.

App. 2003) (“A trial court should instruct the jury on a principle of

law when there is some evidence to support the instruction.”). In

determining whether the evidence is sufficient to warrant such an

instruction, we view the evidence in the light that favors giving the

instruction. People v. Silva, 987 P.2d 909, 914 (Colo. App. 1999).

¶ 34 Contrary to Clark’s contention, some evidence in the record

indicated that Clark could be viewed as the initial aggressor. For

instance, one witness to the altercation — T.W. — testified that she

did not believe that Clark had the gun when he initially exited the

19

car. Instead, T.W. said, “I think [Clark] went back to the car and

got [the gun].” This testimony at a minimum implies that Clark

initiated the altercation by returning to his car to retrieve his

weapon. The record also indicates that Clark was the only

individual to actually engage in physical violence during the

altercation by using the firearm against D.L. and G.M.

¶ 35 While Clark’s recitation of the facts provides a valid basis from

which the jury could reasonably determine that he was not the

initial aggressor, his argument misconstrues our role. In reviewing

whether a trial court’s decision to provide a specific jury instruction

was in error, we look only to determine if there is “some evidence” to

support the initial aggressor instruction. Castillo v. People, 2018

CO 62, ¶ 37; see also Roberts-Bicking, ¶ 31 (“A trial court may

instruct the jury on an exception to an asserted affirmative defense

if ‘some evidence’ supports the exception.” (citing Galvan v. People,

2020 CO 82, ¶ 25)). To qualify as “some evidence,” the evidence

must be such as would support a reasonable inference that the

accused was the initial aggressor.” Roberts-Bicking, ¶ 31. As noted

above, some evidence at trial supported a reasonable inference that

Clark could have been the initial aggressor to the altercation.

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¶ 36 But Clark appears to contend that the record supports only

the conclusion that he was not the initial aggressor. However,

contrary to his argument on appeal, the issue of who initiated the

altercation was highly disputed at trial. Testimony by the witnesses

in the case provided varying — and often conflicting — accounts of

how that altercation unfolded. For instance, Clark himself testified

that T.W. told him that he was about to be assaulted by her

companions. Clark also said that he heard someone attempting to

open the back passenger side door of his car, and that he fired his

gun in self-defense as he was exiting his car. In contrast, T.W.

testified that Clark did not have a gun when he initially exited the

car, and that he returned to the car to retrieve the gun before firing

at D.L. and G.M. While we agree that the jury could reasonably

have sided with Clark’s version of the facts, other testimony

conflicted with his assertions. We, however, are not the fact finders

in this case; that duty is reserved for the jury and the jury alone.

See People v. Barker, 538 P.2d 109, 110 (Colo. 1975) (“It is

axiomatic that the jury is the sole judge of the credibility of the

witnesses.”); see also People v. Ramirez, 30 P.3d 807, 808-09 (Colo.

App. 2001) (a limitation on a judge’s power “is premised on the

21

basic principle that the jury should decide the difficult questions of

witness credibility and the weight to be given to conflicting

evidence”).

¶ 37 Because the record provides some evidence for including the

initial aggressor instruction, we discern the trial court did not err.

III. Prosecutorial Misconduct

¶ 38 Next, Clark contends that the prosecutor committed reversible

misconduct both in cross-examining Clark and during the

prosecutor’s closing arguments. Specifically, Clark argues that the

prosecutor engaged in misconduct by asserting that Clark had a

duty to retreat instead of defending himself. We disagree.

¶ 39 “In reviewing a claim of prosecutorial misconduct, ‘we consider

whether the prosecutor’s conduct was improper and whether any

impropriety requires reversal.’” People v. Garcia, 2022 COA 144,

¶ 56 (citation omitted). Whether a prosecutor’s statements

constitute misconduct is generally a matter left to the trial court’s

discretion. Id. Accordingly, we will not disturb the court’s rulings

on alleged misconduct absent a showing of an abuse of discretion.

People v. Strock, 252 P.3d 1148, 1152 (Colo. App. 2010).

22

¶ 40 Clark did not object to any of the prosecutor’s comments that

he now challenges on appeal. When a claim of error for

prosecutorial misconduct is not preserved, our review is quite

limited — we may reverse only if plain error occurred. Hagos, ¶ 14.

An error is plain only if it was obvious and so undermined the trial’s

fundamental fairness as to cast serious doubt on the conviction’s

reliability. People v. Dominguez-Castor, 2020 COA 1, ¶ 85.

¶ 41 Relevant here, Clark contends that several statements made

by the prosecution during cross-examination and closing

arguments constituted reversible prosecutorial misconduct. For

instance, on cross-examination Clark claims that the prosecution

repeatedly and improperly asserted that Clark should have

retreated and not stopped to speak with T.W. prior to the

altercation. In support, Clark points to several questions that the

prosecutor asked him, such as why he did not (1) call the police for

help; (2) drive to his friend’s house; (3) drive away from T.W.;

(4) drive to the Aurora Police Department; or (5) retreat or hide

inside his vehicle.

¶ 42 Clark also contends that the prosecution made similarly

inappropriate statements in the prosecution’s closing arguments by

23

heavily emphasizing that he had a duty to retreat. For instance, he

notes that in closing the prosecutor said the following:

• “So why when [T.W.] stops first did [Clark] then stop half

a block later? Instead, he could have taken any which

number of ways out of the neighborhood away from her,

away from her . . . . No, he chose to stop.”

• “[Clark] mentioned he is in his parked car, on or off, and

he heard someone trying to get into his back door, but it

was locked. Would a reasonable person stick around, or

would they drive off?”

• “[Clark] mentioned shadow people, these people who

were running all around the car and I didn’t know what

else to do. What else could I do? Not get out of the car.”

• “What is reasonable? Call 911, any X number of times.

Go to the police station that he said he went to earlier.

Have his friend call 911. . . . Not get out of the car.

Keep driving. . . . Why not leave? If he is so afraid of

[T.W.] why doesn’t he just leave?”

• “If you want to let’s say assume that what the defendant

said is true, is it reasonable? Is it reasonable to shoot

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people walking towards your car? Is it reasonable to get

out of your car, place yourself in the middle of what you

describe as a dangerous situation? . . . No. This is law,

this is order, and it’s about reasonableness. This is not

self-defense.”

¶ 43 Reviewing Clark’s contentions of prosecutorial misconduct in

light of the entire record, we are disinclined to conclude that the

trial court committed plain error by not intervening sua sponte. As

noted above, initial aggressors do not have a privilege of using

physical force in self-defense unless the initial aggressor first

withdraws from the encounter and notifies the other person of his

or her withdrawal, and the other person continues or threatens to

use unlawful physical force. People v. Toler, 9 P.3d 341, 350 (Colo.

2000). Such a duty to retreat only applies to initial aggressors. See

People v. Martinez, 224 P.3d 1026, 1032 (Colo. App. 2009), aff’d on

other grounds, 244 P.3d 135 (Colo. 2010).

¶ 44 Clark correctly notes that Colorado law imposes no duty to

retreat on a person who is not the initial aggressor. See Cassels v.

People, 92 P.3d 951, 956 (Colo. 2004) (noting only initial aggressors

must retreat before using force in self-defense). And because Clark

25

asserts that he was the non-aggressor in this case, he argues that

the doctrine of no retreat applies. Thus, he contends that any

argument by the prosecution implying that he had a duty to retreat

was reversible error.

¶ 45 Clark’s contention, however, is premised on his assumption

that he was not the initial aggressor. But, as noted above, Clark’s

actions as described through the testimony of T.W. support a slight

but reasonable conclusion that he was, in fact, the initial aggressor.

Specifically, some evidence indicated that Clark returned to the car

to retrieve the gun before firing at D.L. and G.M. See Griffin, 224

P.3d at 300 (noting that Griffin’s initial verbal confrontation was

insufficient to make her the initial aggressor; however, evidence

that she left the argument and returned with a gun warranted

giving the initial aggressor instruction); People v. Willner, 879 P.2d

19, 25 (Colo. 1994) (noting defendant was the initial aggressor

because he was chasing the truck with a gun).

¶ 46 Because the act of returning to the car to retrieve the gun

arguably supports a conclusion that Clark was the initial aggressor,

Clark was not entitled to the protections of the no-retreat doctrine.

26

¶ 47 We also reject Clark’s assertion that the prosecutor’s

comments implied that he had a duty to retreat. The prosecutor’s

statements — viewed in the context of the record as a whole — do

not show that the prosecutor was arguing that Clark had a duty to

retreat. Rather, the prosecutor’s comments focused on Clark’s

decision to get out of his car and essentially enter the fray. See

People v. Monroe, 2020 CO 67, ¶ 28 (noting the prosecutor’s

comments did not highlight “the defendant’s failure to retreat once

he felt threatened,” but rather emphasized the defendant’s “decision

to enter the fray, which arguably made him an initial aggressor”).

Thus, the prosecutor’s comments were a reasonable response to

Clark’s assertion that he was not the initial aggressor. See People

in Interest of J.R., 2021 COA 81, ¶ 46 (“A prosecutor is afforded

considerable latitude in responding to the defense’s theory of the

case.”); People v. Thornton, 251 P.3d 1147, 1149 (Colo. App. 2010)

(“The prosecution is entitled to the benefit of every reasonable

inference that may fairly be drawn from the evidence . . . .”).

¶ 48 Therefore, we discern no prosecutorial misconduct.

27

IV. Cumulative Error

¶ 49 Finally, we disagree with Clark that the alleged errors require

reversal under the cumulative error doctrine.

¶ 50 “When reviewing for cumulative error, we ask whether

‘numerous formal irregularities, each of which in itself might be

deemed harmless, may in the aggregate show the absence of a fair

trial.’” People v. Vialpando, 2022 CO 28, ¶ 33 (quoting Howard-

Walker v. People, 2019 CO 69, ¶ 24). To reverse under this

doctrine, we must conclude that “the cumulative effect of [multiple]

errors and defects substantially affected the fairness of the trial

proceedings and the integrity of the fact-finding process.” Howard-

Walker, ¶ 24 (citation omitted).

¶ 51 Because we have rejected Clark’s assertions of error, we

discern no cumulative error occurred during his trial.

V. Conclusion

¶ 52 The judgment of conviction is affirmed.

JUDGE JOHNSON and JUDGE HAWTHORNE concur.